Having quickly read this new decision by U.S. District Judge Edward Nottingham of the Colorado District Court in Denver striking down the do-not-call list, Mainstream Marketing Services v. FTC, I think that there are grounds to believe that, despite being decided on First Amendment grounds, this decision either will not affect the new congressionally mandated plan and/or will be reversed on appeal. I teach a lot of varied things, but First Amendment law is not one of them. So I'm offering these tentative thoughts as a sort of rough draft. If on reflection I change my mind, I may rewrite parts of this, and indicate where I made changes.

There is a grey area in the law here, and this decision wallows in it. But before getting to the hard stuff, there's the question of whether this decision is valid at all — arguably it was moot at the time it was issued, since the FTC's plan had already been struck down (on a different theory) by Judge Lee R. West in Oklahoma. Alas, even if that's right, it doesn't really matter, since someone can file a new case as soon as the new congressional legislation (quoted below) is signed into law. (I also leave for a legislative expert whether the trivial wording differences between the House and Senate versions will require any adjustment before a bill goes to the White House for the occupant's signature.)

To follow what's coming, keep one distinction in mind: viewpoint discrimination is when the government favors one side in an argument. Content discrimination is when the government tries to take a subject, or a type of speech, off the table entirely. Viewpoint discrimination is a First Amendment deal breaker in all but the most unusual circumstances, usually involving conduct as well as speech. The law on content discrimination is murkier. It's clear that to the extent content discrimination amounts to viewpoint discrimination, it's forbidden. After that, it gets complex. Or, as Robert Post put it in Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1265 (1995), “Whatever the ultimate merits of a First Amendment focus on content neutrality, the Court's doctrinal elaboration of [the doctrine that restrictions on speech must be justified without reference to the content of the regulated speech] has been haphazard, internally incoherent, and for these reasons inconsistent with any possible principled concern for content neutrality.”

Judge Nottingham's decision turns on his finding that the FTC's decision to ban commercial telemarketers but not non-commercial charitable solicitations is impermissible content discrimination as it favors the content (note—content, not viewpoint) of non-commercial speakers over commercial ones. And that, the Judge held, is no go.

The Judge based this ruling on R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), which states that “[c]ontent- based regulations are presumptively invalid.” Similarly, in Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994), the Supreme Court stated that “[o]ur precedents … apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” But, “regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny … because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.”

Some academics, including Dean Kathleen M. Sullivan, have criticized this approach for encouraging legislatures to ban whole classes of speech for fear of engaging in content discrimination.

In fact, the Supreme Court has not been quite that categoric. In R.A.V. the Court said that legislatures may sometime pick and choose if they have a good reason. Thus, for example, “a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection) is in its view greater there.” And,

“[a]nother valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular 'secondary effects' of the speech, so that the regulation is 'justified without reference to the content of the … speech.' A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

These bases for distinction refute the proposition that the selectivity of the restriction is “even arguably 'conditioned upon the sovereign's agreement with what a speaker may intend to say.' ” There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue) it may not even be necessary to identify any particular “neutral” basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed actresses.) Save for that limitation, the regulation of “fighting words,” like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone. [FN6: …we readily concede: that presumptive invalidity does not mean invariable invalidity, leaving room for such exceptions as reasonable and viewpoint-neutral content-based discrimination in nonpublic forums…]

Got that? The state can selectively ban some types of content, but only for good cause. The FTC found that commercial sales calls were 40-60% [is that all, ed?] of the call volume. It exempted non-commercial pitches because it thought that these messages had a greater First Amendment protection than commercial speech. Judge Nottinigham, however, held that in this context all the calls had some First Amendment protection, and also held that the FTC had failed to demonstrate any good cause for treating non-commercial requests for donations more kindly than sales pitches. The agency did not, for example, provide evidence that fraudulent sales calls were more likely than fraudulent pitches for fake charities. And, as far as the record revealed, he said, both are equally disturbing at dinner time.

It seems to me that a higher court would have at least three ways it could reverse this decision. First, it could read the passages from R.A.V. quoted above to find the authority to ban sales calls as a reasonable exercise of the authority to exercise “selectivity (where totally proscribable speech is at issue)” because “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” This decision would stress the existence of alternate channels of communications for ads—TV, radio, spam, junk mail. Comfort might also be found in the recent Watchtower Society v. Village of Stratton in which the Supreme Court apparently assumed, but didn't hold, that door-to-door religious solicitation was entitled to a higher degree of First Amendment protection than might be available for salespersons.

A second approach would be to say that common sense suggests that sales calls are in fact more likely to pose a risk of fraud, or really are more disturbing at dinner time, and that justifies the distinction. This is less likely, as it isn't usually possible to justify an agency's decision based on something that was not on the record at the time the agency made the decision. On the other hand, if tomorrow's edition of the Congressional Record were to show that the legislative history of today's bills indicated that Congress believed that was the case then that might give the court of appeals all the excuse it needed. Or, better yet, if the matter goes to conference maybe upon re-passing the bills the sponsors or conferees could cook up some legislative history or additional congressional findings real quick.

A third approach would be to yet again try to untangle content discrimination jurisprudence, a task that would probably require a trip to the Supreme Court.

Whatever the route, though, the equities on this one are pretty strong, and I think a reversal is likely on one theory or another.

Text of the House and Senate bills

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Introduced in House)

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.

IN THE HOUSE OF REPRESENTATIVES

September 24, 2003

Mr. TAUZIN (for himself, Mr. DINGELL, Mr. UPTON, and Mr. MARKEY) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.

(a) AUTHORITY– The Federal Trade Commission is authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to implement and enforce a national do-not-call registry.

(b) RATIFICATION– The do-not-call registry provision of the Telemarketing Sales Rule (16 C.F.R. 310.4(b)(1)(iii)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

And,

S 1652 IS108th CONGRESS1st SessionS. 1652

To ratify the do-not-call registry provision of the Telemarketing Sales Rule, as amended by the Federal Trade Commission, effective March 31, 2003.

To ratify the do-not-call registry provision of the Telemarketing Sales Rule, as amended by the Federal Trade Commission, effective March 31, 2003.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.

(a) FINDING– Congress finds that the Federal Trade Commission was authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to compile and implement a national do-not-call registry.

(b) RATIFICATION– The do-not-call registry provision of the Telemarketing Sales Rule (16 CFR 310.4(b)(1)(iii)(B)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

2 Responses to Lots More About the Do-Not-Call-List

In thinking about the Do-Not-Call controversy, I think we need to remember two things:
1. We very often lose sight of the fact that only natural persons have inherent rights. Entities created by the state, such as coporations, partnerships, limited liability companies, and so on, have only the rights granted to them by the state. The “commercial free speech’ discussion frequently elides this distinction.
2. In making calls, the marketer is using my equipment, that is, my telephone and the telephone line that I pay for. Whatever his or her rights may be, they do not extend to the use of my equipment. If someone insisted on using my car or my house in his or her marketing, no one would suppose that they had that right. The difference between using my car or using my telephone is different only because the later costs less. I could, of course, get an unlisted number, but that makes it harder for others to find me and costs more to boot.

Correct me if I’m wrong, but I believe the Judge in Colorado also hung a large portion of his decision on City of Cincinatti v. Discovery Network Inc. which stated that the State could not pick and choose between types of commercial choices that would be presented to the public. Under the Do Not Call law, there are numerous groups that are exempted (those that are not for profit, or who engage mostly in political speech), and thus the government is picking and choosing as they did in Cincinatti. It’s my belief that this legislation is going to force the SCOTUS to draw a line between their concerns over the right of privacy and the freedom to conduct commerce.